‘The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Constitution, Article II, Section 2, Clause 3.

On April 25, President Barack Obama’s lawyers filed a petition for a writ of certiorari, asking the Supreme Court to review the Jan. 25 decision by the U.S. Court of Appeals for the District of Columbia Circuit that interpreted the Recess Appointment Clause in a way that would render it totally useless. There are legal arguments on both sides of the interpretation questions, but even if the opponents of a broad power of recess appointments prevail, there may nonetheless be a silver lining for the president.

In that event, the president and the Democratic majority in the Senate may have no choice but to attack the real problem — the unfettered use of the filibuster for executive branch appointments that has caused this president, and some of his predecessors, to resort to recess appointments so that the government can carry out the laws that Congress has passed. Before explaining how the filibuster can be overcome, it is important to write a few words about the background of the clause and how it might be restricted.

Recess appointments were a response to a real problem. At the nation’s founding and for many years after that, Congress was in session for relatively brief times, meaning that there were long periods when the Senate, which has to confirm presidential nominees, was not available and could not easily return to act on nominations. Although there were many fewer positions to be filled and the work of the federal government was much less significant than today, filibusters did not cause presidents to use recess appointments to fill vacancies, but they do now.

If a narrowed recess appointment power is to be used as a basis for attacking the filibuster over appointments, one question is, how narrow will that power be if the D.C. Circuit opinion — or something like it — is sustained? There are a range of possibilities, and without commenting on their merits or likelihood, here they are, in descending• order of restrictiveness.

The power applies only when the vacancy occurs during the recess, which is by far the most restrictive limit on recess appointments because most vacancies occur when the Senate is in session. This outcome would be especially harsh for the president if the Supreme Court were to adopt any• of the narrow definitions of “recess” described below.

There is only one recess under this clause, and that is the one between sessions of Congress. This is a very significant limitation, especially if, as the Circuit Court held, the intersession recess occurs only if the presiding officer utters the magic words “sine die.” If the Senate is controlled by the opposing party, that could occur just an instant before the next session begins, which happens at noon on Jan. 3. Even• if the president’s party controls the Senate, the minority could filibuster the sine die resolution so that there would be no effective window for making a recess appointment.

Somewhat less restrictive would be a ruling that the recess must be formally announced and last at• least three days. That is subject to the same kind of minority interference as the prior option, except, to be truly effective in blocking nominations, it must be employed on multiple occasions each session.

Finally, and this is the Obama administration position, a recess occurs and the recess appointment power can be used whenever the Senate is not in session to do its business and for that reason nominees cannot be confirmed.

If the high court were to adopt any but the Obama approach, the power would become a virtual dead letter. As a policy matter, I am agnostic about the proper use of the recess appointment power. Rather, I think the power is expansive when “my” president is using it, as I suspect most people with views on the issue do, and restrictive when the president is of the other party. That kind of situational interpretation is convenient but unprincipled, and so, but for the filibuster, I would come down in favor of a narrow rather than a broad reading of an exception to the confirmation process, which is an important part of our system of checks and balances.

But today, the filibuster is not just a minor annoyance, especially if the Supreme Court takes a narrow view of the recess appointment power. Indeed, such a ruling would make the filibuster even more attractive since it would be possible to prevent a president from installing a very large percentage of his Cabinet and others needed to run the government. At that point, even if the Senate were still controlled by the president’s party, allowing filibusters over executive branch nominations would become intolerable, and the traditional reluctance to attack their expanded use could no longer be justified.

The best response would be for the Senate to change its rules to eliminate the filibuster for executive branch officials but not for federal judges. The Senate has unwisely used the filibuster to thwart this president, and to a lesser extent, his predecessors, from obtaining an up or down vote on too many judicial nominees, but on the policy question, I strongly oppose recess appointments for federal judges, although the Constitution makes no such distinction. But even that is a tentative judgment and assumes that the situation will not become worse.

If the rule change approach does not work, there is another way to get there: The presiding officer of the Senate, Vice President Joe Biden, could declare that the filibuster is unconstitutional as applied to executive branch nominations and rule that a given nomination is in order and will be approved if a majority supports it. The constitutional theory is quite simple. Congress can make its own rules, but those rules cannot violate other parts of the Constitution. Just as the Senate could not issue a rule requiring 60 votes to confirm a woman or an African-American for a Cabinet position, it cannot have a rule that requires such a supermajority vote for all nominees.

The appointments clause requires a majority vote of the Senate, in contrast to the vote approving a treaty, which requires two-thirds. The filibuster is, in effect, a rule requiring 60 votes for confirmation, but that conflicts with the majority-only requirement of the appointments clause and cannot be a valid impediment to an up-or-down vote on nominees. If such an attack on the filibuster were used, it would be open to a court test. Once in office, the correctness of that constitutional determination could be challenged by anyone who was adversely affected by a decision of the appointee, just as the Obama recess appointments are now being tested in court by those who objected to decisions of the National Labor Relations Board.

That’s the trade-off: no more recess appointments, but no more executive branch filibusters. Is there any president who would not accept that deal in a second?

Alan Morrison is associate dean for public interest and public service law at The George Washington University Law School.